Gay marriage, the absurd reduction of Scalia’s “homosexual” jurisprudence
by Russell's Rants
Originally published December 12, 2012
How do we know that Associate Justice Antonin Scalia is a Republican? When he opens his mouth, as his did today during a lecture on the Constitution today at Princeton University, culturally retrograde bile slips out.
Here is how Scalia responded to a student’s query as to how he justified untoward comparisons of homosexuality to murder and bestiality in his official writings for the Supreme Court:
If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against these other things?
Scalia explained his hyperbole as a form of “effective” argument:
It’s a reduction to the absurd…. I’m surprised you weren’t persuaded.
The student, Duncan Hosie, wasn’t persuaded, and later explained that his objection was as much to the Scalia’s debased language as to the argument itself.
This the same sort of nonsense that we saw during this past election season – loose Republican talk about “legitimate” rape, aspirin-between-the-knees contraception and “God intended” pregnancies that result from rape. Ann Romney may have “love[d] you women,” but you women didn’t return the compliment.
It is not an exaggeration to say that conservative position on social issues, including gay rights, abortion and immigration, helped the GOP lose the White House and Senate.
In re-reading his dissent in Lawrence v. Texas, where Scalia first raised his murder-bestiality reductio ad absurdum, the Justice inadvertently provided a roadmap for the legalization of gay marriage. Writing for the majority in Lawrence, Justice Kennedy held that anti-sodomy laws – which essentially outlawed private sexual relations between consenting gay adults – did not pass the rational basis test needed to justify any state action. Scalia’s rebuttal, contrary to being absurd, showed the rather logical extension of the Court’s ruling.
At the end of its opinion – after having laid waste the foundations of our rational-basis jurisprudence – the Court says that the present case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”… Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.”…
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…; and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring…;” what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,”…?
He answers his own questions thusly:
Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
Can’t argue with that rather logical, non-absurd conclusion.